As stories of the vast amounts of suffering caused by abortion bans are piling up, a group of House Democrats is calling on congressional leaders to support a push to strip the Supreme Court of its ability to rule on abortion — as well as marriage equality, sex and contraception — altogether.
Representatives Alexandria Ocasio-Cortez (D-New York), Mondaire Jones (D-New York) and eight others sent a letter to Democratic leaders this week, asking them to lend their support to the idea. They say that the move is crucial — not only to potentially protect abortion rights, but also to protect rights like gay marriage, which the Supreme Court has indicated are next on the chopping block.
“We write to urge your support for restricting the Supreme Court’s appellate jurisdiction in the areas of abortion, marriage equality, non-procreative intimacy, and contraception,” the lawmakers said. “In doing so, we can ensure that, as Congress takes legislative action to codify each of these fundamental rights, a radical, restless, and newly constituted majority on the Court cannot further undermine the protections we would enact.”
Though the Supreme Court has already dealt the public a devastating blow in its ruling to overturn Roe v. Wade, the letter writers said that Congress has a chance to fight back. Though it’s a long shot, Democrats in Congress are aiming to unite behind a filibuster carveout for the party’s bill to codify Roe; in order to ensure that such a move would be effective, it is necessary for the legislative branch to pre-empt far right attacks on the bill and bar the Supreme Court from being able to overturn it.
Congress has the authority to limit the Supreme Court’s jurisdiction under Article III of the Constitution, the lawmakers said. Further, these powers have been consistently upheld by the Supreme Court itself, including in 2018, when Justice Clarence Thomas affirmed in a decision that Article III should stand in order to preserve checks and balances between the three branches of government.
“With our basic rights under threat from a rogue Supreme Court, Congress needs to exercise our legal authority to the fullest extent,” Ocasio-Cortez wrote. “To protect marriage equality, contraception, and more, we need to limit the power of the far-right Court.”
The House passed the bill to codify Roe earlier this year; in their letter, the lawmakers further called on Congress to pass bills to codify the rights to gay marriage, non-procreative sex and contraceptive access. Justice Clarence Thomas has invited new legal challenges to access to contraception and gay marriage, while homophobic sodomy laws that were passed decades ago still stand in some states, technically banning people from having consensual sex outside of marriage.
The Senate has blocked the abortion access bill, as Sen. Joe Manchin (D-West Virginia) joined all Republicans to nix it in May. Even if the bill did pass, the lawmakers warned in their letter, the Supreme Court could still overturn it, nullifying hard-fought efforts to protect abortion rights. Considering justices’ extremist ruling in Dobbs v. Jackson, this is entirely within the realm of possibility.
“As we Democrats plan for further legislative action to protect and enshrine abortion rights, as well as the three other fundamental rights called into question in Justice Thomas’ concurring opinion in Dobbs, we urge the exercise of Congress’ constitutional powers under Article III,” the letter reads. “The American people want to see Congress protect their fundamental rights, and the Constitution grants us the powers to do so.”
Even if Congress isn’t able to pass bills protecting abortion or other rights, stripping the Supreme Court of its power on these issues would still be a strong rebuke of the far right justices. Meanwhile, Democrats are exploring other possibilities to hold the High Court to account.
In another recent letter, Ocasio-Cortez and Rep. Ted Lieu (D-California) called on the Senate to formally state whether or not Supreme Court justices lied under oath during their confirmation hearings in order to secure their seats. This could provide momentum to calls to remove the justices for lying under oath, which Ocasio-Cortez and others say lays the grounds for impeachment.
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